Case No:  FD16P00101
Neutral Citation Number: [2016] EWHC 2815 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

Courtroom No.49

Queen’s Building
The Royal Courts of Justice
Strand
London
WC2A 2LL

Wednesday, 28th September 2016

Before:
THE HONOURABLE MR JUSTICE HOLMAN
(Sitting throughout in public)

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B E T W E E N:

R

and

R

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Transcript from a recording by Ubiqus
61 Southwark Street, London SE1 0HL
Tel: 020 7269 0370

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The father appeared In Person

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JUDGMENT
MR JUSTICE HOLMAN: 

1.	I am sitting today as the urgent without notice applications judge of the Family Division.  An applicant father, has come in and appeared before me.  The circumstances are a little unusual.  In the exercise of my discretion, I will simply make no order of any kind upon his application and in effect treat this as a non‑event.  However, I should say a few words which will remain on the record and capable of being later transcribed in explanation of the present situation.
2.	The applicant, whom I will call the father, says that he is married to the mother and that they have two children: a daughter now aged six, and a son now aged about one and a half.  He says that they were all living together here in England and that both children were habitually resident here.
3.	On 25 December 2015, that is, about nine months ago, the family travelled to India.  The father says that the purpose of that visit was purely for a short holiday and that they were all due to return in mid‑January.  As a result of events occurring in India, the father returned alone on 13 January 2016 and he says that he has not been able to obtain the return of his children since then.
4.	In February 2016, he issued an application in this court, seeking that these children be made wards of this court.  He went on a without notice application before Keehan J on 29 February 2016.  On that day, Keehan J made an order that the children shall remain wards of this court during their minority or until further order, and that the mother shall return the children forthwith to England and Wales.  It is important to note that that order was made on a basis recited in recital 5 to the order, that:
‘The court was satisfied on a provisional basis on the basis of the evidence filed that: a) The children were on 25 December 2015 and remained on 23 February 2016 habitually resident in the jurisdiction of England and Wales; b) The children were wrongfully retained outside the jurisdiction of England on 25 December 2015; c) the courts of England and Wales have exclusive jurisdiction in matters of parental responsibility over the children pursuant to [certain provisions of EU law].’

5.	What seems to have happened since then is that the father has taken proceedings in India before the courts of Bangalore in order to seek the return of his children, in effect by way of implementation and enforcement of the order of Keehan J.  Unfortunately for the father, it emerged during the course of those proceedings that he had in fact already taken some legal steps against the mother before the courts in India during January 2016, and that he had not mentioned the existence of those proceedings in any of his documents before Keehan J.  This led the Indian court to take a firm view as expressed in paragraphs 25 and 26 of a judgment dated 20 May 2016, to the effect that the father had in fact ‘played fraud’ upon the English court, and had wrongfully obtained the interim order of Keehan J dated 29 February 2016.
6.	The Indian court went on to express the view that the court with the ‘most intimate contact and closest concern with the children and parents’ was not in fact this court of England and Wales but, rather, the courts of Mysore or Bangalore.  Their judgment concludes by saying:
‘‘…the petitioner [viz the father] has himself declared that it is the court at Mysuru or Bengaluru, which has got most intimate contact and closest concern with the children and parents, and that therefore the court at Mysuru or Bengaluru has got jurisdiction to try the matter.’

7.	Faced with that setback and in order to try to regularise the situation, the father has appeared before me today and asked me to set aside the order that Keehan J made on 29 February 2016, but to replace it by a fresh order in similar if not identical terms, but this time reciting that he has drawn the attention of the English court to the existence of the proceedings in India.  In that way, he seeks to obtain a fresh order of this court upon which he can rely in India without that court taking the view that they previously took, that he has ‘played fraud’ upon this court.
8.	I am not willing to do that.  I have made it absolutely clear, and repeatedly, to the father today, that if he asks me completely to set aside the order of Keehan J and to dismiss these proceedings, then (since he is the applicant who obtained that order) I would be quite willing to do so.   But what I am not willing to do is replace it by an order in the same or similar terms.  The reasons for that are, first, that although Keehan J felt able to say on 29 February 2016 that the children remained at that date habitually resident in England and Wales, I would be quite unable to repeat such a view today.
9.	The fact of the matter is that these children left England and Wales on 25 December 2015 and have lived for the last nine months in India.  I know nothing about the circumstances in which they are living there, but with every month that has passed it becomes less and less possible to say that they remain habitually resident here in England and Wales.  Therefore, I would be very doubtful indeed today whether there is in fact any current jurisdictional basis for proceedings before this court.
10.	Second, Keehan J stated in paragraph 5(c) of his order that this court has ‘exclusive jurisdiction in matters of parental responsibility over children’.  That was almost certainly not an accurate proposition even at the time.  The EU Regulation regulates jurisdictional matters as between member states of the European Union.  If, therefore, these children had been taken, not to India but to some other European country, for example to Italy, then it might have been possible to say that this court has ‘exclusive jurisdiction’ because jurisdictional matters as between all member states of the European Union are regulated by the same regulation.
11.	However, even in February it is likely that jurisdiction in relation to these children was shared also with the courts of India, if only on the basis at that time that the children were present there.  Now, I have the benefit of the judgment of the court in Bengaluru dated 20 May 2016, which, as I have already quoted, makes plain that in the view of that court and applying the law of India, that court has jurisdiction in relation to these children on the basis that it has the most intimate contact and closest concern with the children.   Therefore, at best now, jurisdiction is shared between this court and the courts of India.  Most certainly it is not currently possible to say that this court has exclusive jurisdiction in relation to these children.  
12.	The third and principal reason why I would not be willing to repeat an order in the terms of the order of Keehan J is that I know nothing whatsoever with regard to the current circumstances and welfare and wellbeing of these children.  I know only that for the last nine months they have resided in India with their mother; in the case of the younger child that is now approaching half his life.  It is far from self‑evident that it is in the best interests of these children that they should return forthwith to England and Wales, and indeed it may be highly arguable whether they should be required to return to England and Wales at all.  Therefore, it would be impossible for me today to make an order at all along the lines of the order that was made on 29 February 2016.
13.	I am sympathetic to the position of the father, who is now representing himself, and obviously struggling in a legal minefield, but I have had to present him with a stark choice.  On the one hand, if he asks me to do so, I will certainly set aside the order of Keehan J, but I would not be willing to replace it with an order in the same or even substantially the same terms.  On the other hand, that order has been made.  It has not been the subject of appeal.  It has not been the subject of any application by or on behalf of the mother to vary or set it aside.  Therefore, if, alternatively, the father, elects simply not to proceed with this application before me today, then I will, as I have said, treat this hearing as a non‑event, and that order will remain in full force and effect for whatever value it may have.
14.	I gave to the father an opportunity to go out from court while I heard another case and to reflect and make a decision.  His decision is that on balance he prefers to leave the order of Keehan J in place.  Accordingly, for those reasons, I will do absolutely nothing on this unlisted, without notice, application and simply return the papers to the father.   So there is no order.

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